The Aftermath of Focht v. Wells Fargo Bank


Focht is the poster-child for foreclosure defense.  Quite simply:

“Judges’ personal feelings on foreclosures are irrelevant.  All that matters is that they continue to follow the law.”


The Aftermath of Focht

by Mark Stopa

When Florida’ Second District Court of Appeal issued a written opinion in Focht v. Wells Fargo Bank, N.A. on September 25, 2013, Florida homeowners, consumer advocates, and defense attorneys were concerned.  After all, there was potential for the Florida Supreme Court to change the law and take away one of the biggest defenses homeowners can raise in a foreclosure case, the bank’s standing at the inception of the suit.

Fortunately, that issue is now dead.  Wells Fargo decided not to appeal to the Florida Supreme Court, and even though the Second District certified the issue, the Florida Supreme Court lacks jurisdiction to rule when an appeal is not filed. mI’d like to think Wells Fargo realized it had no chance of prevailing after reading my motion for rehearing, but whatever the reason, there is no imminent risk of the law being changed on this issue.  “Standing at inception” remains a requirement in all foreclosure cases in Florida, and that’s great news for homeowners, obviously.

Meanwhile, though, some bank lawyers and even some judges are pointing to the Focht ruling as proof of a changing of the guard in the foreclosure arena.  They see Focht as proof that judges are tiring of defense arguments and should just rule in favor of banks.  In support, they point not only to the certified question and, in particular, Judge Altenbernd’s concurring opinion.

I suppose I can understand this logic.  After all, three appellate court judges openly campaigned that the Florida Supreme Court change the law to prevent homeowners from raising “standing at inception” as a defense in foreclosure cases.  Judge Altenbernd is so troubled at the equities of foreclosure defense that he openly lamented something that is totally lawful, homeowners collecting rents while a foreclosure suit is pending.

Hence, it might seem easy to argue Focht as proof that the tide is turning.  It might be easy, but it’s wrong.

Rest from The Stopa Law Blog here…


2 Responses to “The Aftermath of Focht v. Wells Fargo Bank”
  1. Mike says:

    Well done Mark, and thanks for putting it out. I thought it was a stellar piece of motionry. It was also true, logical, fair and just. Nice mention of the LPS/DocX/Brown crew :). Time for Judge Altenbernd to be retired.

  2. BOBBI SWANN says:

    With all due respect to Mark Stopa and his firm, it is unfortunate that in the state of Florida we don’t have that many judges who follow the law. A lot of attorneys aspire to become judges. After all, that’s where judges come from…attorneys. Defense attorneys, like their counterparts representing plaintiffs, have those same aspirations. Make too much noise in the court or get a judge on their wrong side could be devastation for their career. At the same time, there are those attorneys who really love the law and strive to make sure that all procedural law is adhered. The ratio of those dedicated attorneys is quite minimal in comparison. I’ve been witness to some of these judges and I still walk away bewildered at some of their rulings. We need to be more diligent when elections come up for judges and vote accordingly!

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